ICC launches scathing attack on South Africa for failing to arrest Omar al-Bashir

Johannesburg – While the International Criminal Court has launched a scathing attack on South Africa’s role in the Omar al-Bashir matter, it said it was not necessary to refer the matter to the Assembly of States Parties to the Rome of Statute or the United Nations Security Council.

“The chamber considers that the referral to the Assembly of State Parties or the Security Council of the United Nations of South Africa’s non-compliance with the court's request for arrest and surrender of Omar al-Bashir, is not warranted,” Judge Cuno Jakob Tarfusser said while reading out his judgment at the International Criminal Court on Thursday afternoon.

The ruling comes after the South African government ignored an order by the North Gauteng High Court in Pretoria preventing Bashir from leaving the country.

The Sudanese president had been attending an African Union summit in Johannesburg in June 2015.

On Thursday the chamber had to decide whether South Africa failed to comply with its obligations by not arresting Bashir while he was in the country and whether, if the country was found to have not complied, the matter should be escalated to the Assembly of States Parties to the Rome Statute and/or the United Nations's Security Council.

Tarfusser found that South Africa had in fact failed to comply with the court’s request to arrest Bashir.

He said no state parties had the right to refuse compliance with the court's request for cooperation.

“The chamber considers that in the case at hand, South Africa was not entitled to rely on its own understanding of Article 98 of the Statute to decide unilaterally not to comply with the court’s request for arrest and surrender of Omar al-Bashir to the court.

“South Africa as a result of having chosen not to give effect to the court's request for cooperation would still be found in non-compliance with its obligation to arrest and surrender Omar al-Bashir to the court.”


He said consultations between state parties and the court do not suspend or affect the validity of the court's request for co-operation.

“By not arresting Omar al-Bashir while he was in the territory of South Africa between 13 and 15 June 2015, South Africa failed to comply with the court's request for the arrest and surrender of Omar al-Bashir contrary to the provisions of the statute thereby preventing the court from exercising its functions and powers under the statute in connection with the criminal proceedings instituted against Omar al-Bashir.”

He said the decision was made unanimously.

On whether it was appropriate to refer the matter to the Security Council, he said an automatic referral was not required as a matter of law in all cases of non-compliance.

In the present circumstances, he said, the chamber considered that the manner in which South Africa approached its obligations to co-operate with the court is a significant determination of whether a referral to the Security Council was necessary.

“South Africa presented extensive oral and written legal arguments on the matter and had indicated its intention to avail itself of the possible remedy of lodging of an appeal in the event that the chamber had found it had violated its obligation under the statute.”

He said the chamber considered that in the circumstances of the case, a referral of South Africa’s non-compliance to the Assembly of State Parties and or the Security Council would not be an effective way to obtain cooperation.

“The chamber notes that South Africa’s domestic courts have found that the government of South Africa acted in breach of its obligation under its domestic legal framework by not arresting Omar al-Bashir and surrendering him to the court.

“In particular, the Supreme Court of Appeal in South Africa has concluded that the conduct of government of South Africa was ‘inconsistent with South Africa’s obligations in terms of the Rome Statute and Section 10 of the Implementation of the Rome Statute of the International Court Act 27 of 2002 and unlawful’.”

Importantly, said Tarfusser, the government of South Africa had withdrawn from its previously lodged appeal against the court.

“It therefore appears that the government of South Africa has accepted its obligations to cooperate with the court under its domestic legal framework.”

He said if there was any doubt in this regard, it has now been established both domestically and internationally, that South Africa must arrest Bashir and surrender him to the court.

Ambiguity removed

“Any possible ambiguity as to the law concerning South Africa’s obligations in these circumstances has been removed, a referral of South Africa’s non-compliance with the court's request for the arrest and surrender of Omar al-Bashir would be of no consequence as the mechanism for the court to obtain cooperation.”

He said the chamber also observed that state parties had been referred to the Assembly of State Parties at the United Nations’ Security Council in six instances in relation to failure of the arrest and surrender of Bashir. Tarfusser said a lack of follow ups on why arrests had not been executed made it difficult for the court to exercise its powers.

Bashir has been charged with crimes against humanity, war crimes and genocide.

In the wake of the controversy over the Bashir matter, the South African government stated its intent to withdraw from the Rome Statute.

However, in March this year, the government backed down on that idea following a ruling by the North Gauteng High Court in Pretoria in February which stipulated that a withdrawal would be unconstitutional and invalid - and needed to be decided on by Parliament.

In June, it was reported that the ANC's subcommittee on international relations declared that the party's decision that South Africa's withdrawal from the International Court still stood, although consultations on the matter continued.

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